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Started By
Message
re: officer taking pistol from vehicle
Posted on 11/13/13 at 11:26 am to DanTiger
Posted on 11/13/13 at 11:26 am to DanTiger
quote:
For officer safety the weapon may be secured
Absolutely, if it is on his person.
quote:
The state believes we have the right to do this and it is what we do
Link? because the case you cite does not provide that an officer may go into the drivers console to secure the gun.
0
Posted on 11/13/13 at 11:27 am to DanTiger
quote:
If somebody doesn't tell me they have a weapon and they dont have a CCW AND I have no RS to search the vehicle they are in I will never know.
What if you ask the non-CCW driver if he has any firearms in the car and he lies and says no?
I ask because last summer I was stopped out west for an illegal U-turn. I exited the vehicle and the officer asked me if I had a gun "on" me. I said "no", knowing full well I had a rifle in the truck. In the moment I interpreted the officer's question to be more immediate, if I actually had a gun in reach.
Once the stop was over (he let me go), I wondered about if I was supposed to tell him about any guns that I may have in the vehicle.
So I guess my question is that if I am out of the vehicle and the officer asks me if I have a gun "on" me, what is the proper response? Since I have NO intention of getting into an armed conflict with a police officer at a road-side stop - ever - I'd just assume give him as little information as possible in order to speed up the process and not add complications that really have no bearing ion his safety.
Posted on 11/13/13 at 11:28 am to UpToPar
quote:
*excuse me, consol* The OP was about the gun being in his console. Still out of plain view.
I must admit I assumed that the driver told the officer the weapon was there as his storyline seemed to be headed in that direction and he did not mention a search of his vehicle. Did you assume something different?
Posted on 11/13/13 at 11:29 am to Five0
quote:
Arrogance or not, the truth is the truth. Citing the facts of this scenario and the fact of decided cases holds more water than, I do this for a living. Particularly when I do the same thing for a living.
I have cited cases. You cited one case that supports all of my statements with the exception being the caveat of a specific Oklahoma law that has no bearing whasoever on Louisiana law or Federal law.
Posted on 11/13/13 at 11:31 am to WildTchoupitoulas
quote:
What if you ask the non-CCW driver if he has any firearms in the car and he lies and says no?
In this state he is within his rights to do so although I would be pretty unhappy if I noticed a gun after being told that he did not have one.
Posted on 11/13/13 at 11:32 am to Five0
quote:
Arrogance or not, the truth is the truth. Citing the facts of this scenario and the fact of decided cases holds more water than, I do this for a living.
None of the cases cited shed any light on what the officer is entitled to do when he knows there is a weapon in the immediate vicinity of the driver.
ETA: I don't think the issue is as clear cut as the law students in this thread make it out to be.
This post was edited on 11/13/13 at 11:43 am
Posted on 11/13/13 at 11:34 am to DanTiger
quote:
I must admit I assumed that the driver told the officer the weapon was there as his storyline seemed to be headed in that direction and he did not mention a search of his vehicle. Did you assume something different?
I assume the cop stopped OP, OP informed him there was a gun in the console and not visible, and the cop asked him is he would hand it over. These are the facts I am basing any argument off of.
What happens next is key. If he voluntarily hands the gun over, then sure, there's nothing wrong with that.
What I'm arguing is that OP could have told the cop he was not going to hand the gun over, and at that point, the cop is not justified to search OPs console for the gun and seize it.
Posted on 11/13/13 at 11:35 am to DanTiger
Mimms did NOT follow the fact pattern of this scenario. I purposely posted the OK case that was adjudicated in Federal court to demonstrate that an officer must be protected by statute to act on a person legally carrying a firearm with a permit. His only action would be to arrest for a misdemeanor offense only if he finds the permit holder lied about having a firearm. That statute would NOT apply to an out of state citizen that did the same thing.
Posted on 11/13/13 at 11:38 am to KG6
quote:
I just don't see it like this. You're taught in you CCW class that you have to inform an officer that you have a concealed weapon during an official stop. The officer has the right to disarm the weapon for his/her safety during the official stop. You legally have the right to carry, but during that short period, they have the right to protect themselves. As long as you aren't breaking any laws, you'll get your gun back
You are correct, but in this situation, the OP/driver was NOT carrying concealed as the gun was in a console (if it's like most consoles, I'd think it was underneath a door of some sort). My question pertains to the officer retrieving the gun from the the console of car that's been pulled over in what appears to be a routine traffic stop. I'm supportive of the police and want the officer to be safe and feel comfortable; I'm not a lawyer or LEO and won't pretend to know the law, but I question whether it's legal, or even safe, for the officer to do what was described by the OP. In addition, where was the OP when the police retrieved the gun? Was he standing outside the car or still seated in the car If the latter, seems like that creates a riskier situation for the police than just having the driver step and moving away from the car.
Posted on 11/13/13 at 11:38 am to UpToPar
quote:
What I'm arguing is that OP could have told the cop he was not going to hand the gun over, and at that point, the cop is not justified to search OPs console for the gun and seize it.
On that point our state law enforcement agencies and you disagree.
Posted on 11/13/13 at 11:42 am to DanTiger
quote:
our state law enforcement agencies
Their opinion does not matter. It's the opinion of Louisiana Supreme Court that matters, or of any court for that matter.
Posted on 11/13/13 at 11:44 am to boom roasted
quote:
None of the cases cited shed any light on what the officer is entitled to do when he knows there is a weapon in the immediate vicinity of the driver.
Right. Without justification, you do not seize legal property. Hence, why if I felt a need, I would order the person out of the car back to my vehicle. That is a legal continuation of the legal detention of the person within the scope of the traffic stop. The "danger" is eliminated, and the Constitutional Rights under the 4th are preserved.
After patting the driver down when I order them out of the car I find cause to arrest, everything in that car is fair game. Play long ball aand avoid having case law named after you. There is a reason why cops have been recently limited in the area of searching a car incident to an arrest.
Posted on 11/13/13 at 11:45 am to UpToPar
This is actually an interesting question.
Joe gets stopped for speeding. Joe tells the officer that he has a firearm in the glove compartment. The officer asks if he can take possession of the firearm to place in the trunk of the car for the duration of the traffic stop. Joe says no. Can the officer take the firearm and place it in the trunk without Joe's consent?
Any case law one way or the other?
Joe gets stopped for speeding. Joe tells the officer that he has a firearm in the glove compartment. The officer asks if he can take possession of the firearm to place in the trunk of the car for the duration of the traffic stop. Joe says no. Can the officer take the firearm and place it in the trunk without Joe's consent?
Any case law one way or the other?
This post was edited on 11/13/13 at 11:47 am
Posted on 11/13/13 at 11:45 am to UpToPar
quote:
Their opinion does not matter. It's the opinion of Louisiana Supreme Court that matters, or of any court for that matter.
And the rulings they have handed down are currently viewed to support my statements. As I stated earlier things change quite frequently in relation to law but Louisiana is a law enforcement friendly state as is our current Supreme Court and if a case exactly as we have outloned appeared before them I would imagine they would rule in favor of my side based on the previous rulings I have cited.
Posted on 11/13/13 at 11:48 am to Five0
quote:
There is a reason why cops have been recently limited in the area of searching a car incident to an arrest.
In large part due to Gant v Arizona. I am well versed in case law that applies to this. I also wholeheartedly disagree with you in this matter.
Posted on 11/13/13 at 11:51 am to boom roasted
quote:
Joe gets stopped for speeding. Joe tells the officer that he has a firearm in the glove compartment. The officer asks if he can take possession of the firearm to place in the trunk of the car for the duration of the traffic stop. Joe says no. Can the officer take the firearm and place it in the trunk without Joe's consent?
Any case law one way or the other?
No, but it is done every single day based on the cases I cited. I imagine one day a case like this will go before the court but it seems like common sense to me that this is not a bad thing.
Posted on 11/13/13 at 11:52 am to boom roasted
quote:
Joe gets stopped for speeding. Joe tells the officer that he has a firearm in the glove compartment. The officer asks if he can take possession of the firearm to place in the trunk of the car for the duration of the traffic stop. Joe says no. Can the officer take the firearm and place it in the trunk without Joe's consent?
I thought this was what we have been discussing the whole time?
quote:
Any case law one way or the other?
Not that I have found. The Holt case above is the closest. The dicta in the opinions specifically state no further action by the officer toward a citizen in possession of a firearm and a CCP. Whether the citizen must inform the officer of the weapon is a state statute issue.
Posted on 11/13/13 at 11:53 am to DanTiger
quote:
I also wholeheartedly disagree with you in this matter.
Can you cite a reason why?
Posted on 11/13/13 at 11:53 am to Five0
quote:
I thought this was what we have been discussing the whole time?
It is. I just wanted to boil it down to a few sentences so everyone is on the same page.
Posted on 11/13/13 at 11:54 am to boom roasted
Fair enough.
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